ACLU-DC Testifies at Performance Oversight Hearing on the Department of Corrections and Corrections Information Council

Statement on behalf of the 
American Civil Liberties Union of the District of Columbia 
before the D.C. Council Committee on the Judiciary and Public Safety 
Performance Oversight Hearing on the Department of Corrections 
and Corrections Information Council 
by 
Melissa Wasser, Policy Counsel 
March 1, 2023

Good afternoon, Chair Pinto and members of the Committee. My name is Melissa Wasser, and I am the Policy Counsel of the American Civil Liberties Union of the District of Columbia (ACLU-D.C.). I present the following testimony on behalf of our more than 15,000 members and supporters across the District.

The ACLU-D.C. is committed to working to dismantle systemic racism, safeguard fundamental liberties, and advocate for sensible, evidence-based criminal justice policies. We strongly believe the District must center the voices of Black individuals, organizations, and coalitions in decision-making and solutions to public safety and criminal justice policies.

My testimony today will focus on three legislative actions that we urge the D.C. Council to take immediately to address the egregious and inhumane conditions of the D.C. Jail facilities, the complete lack of transparency and accountability demonstrated by the D.C. Department of Corrections (DOC) and its leadership, and the systemic injustices perpetuated by the District’s decades-long carceral approach to public safety.

These include (1) addressing conditions and medical care issues at the D.C. Jail, (2) empowering strong, independent oversight by the Corrections Information Council (CIC) of DOC facilities and practices, and (3) banning the use of solitary confinement and other harmful isolation practices like the DOC’s abuse of “safe cells.”

1. The Council must address conditions at the D.C. Jail, including lack of constitutionally adequate medical care and inhumane living conditions.

As we enter another performance oversight season, the same issues that the ACLU-D.C. has highlighted in previous oversight hearings[1] or lawsuits[2] remain: residents inside the D.C. Jail facilities are still being subjected to inhumane living conditions, even after the U.S. Marshals found “systemic failures” at the Jail, including unsanitary living conditions and punitive denial of food and water.[3] Residents lack running water, are being served inedible food in unsanitary conditions, and are experiencing flooding in their showers.[4] These conditions will continue to exist until there is concrete oversight by the Council or the court system that improves these heinous conditions.

Access to healthy and edible food plays a key role in ensuring safety within DOC. Edible food is a fundamental basic need that DOC has a constitutional duty to provide to people in their facilities. Introduced by Chair Pinto and seven Council colleagues, Bill 25-0112, the Food Regulation Ensures Safety and Hospitality Specialty Training Aids Re-entry Transition and Success (FRESH STARTS) Act of 2023, would set requirements for nutrient-dense food served in correctional facilities, require DOC to adopt the Good Food Purchasing Program, strengthen oversight of food and nutrition in correctional facilities, and establish a task force to explore and propose additional long-term improvements. Passing this legislation would help address a longstanding problem that DOC has yet to satisfactorily address on its own and is also critical to moving the District away from a carceral approach to one that focuses on prevention, intervention, and rehabilitation.

Residents at the D.C. Jail should also not be given a potential death sentence due to a lack of medical care from DOC staff. Either directly or through partner organizations who regularly visit the Jail, ACLU-D.C. has also learned of numerous residents at the Jail who have serious medical needs that are not being met because of months-long delays in providing necessary medications, necessary equipment, or in taking individuals to doctors’ appointments after medical staff have identified the need for these measures.

Over the course of 2022, judges in the District of Columbia Superior Court have repeatedly found that DOC has failed to provide constitutionally adequate medical care. In one case, Brandon Grey-Mitchell had fallen several times in September 2021 while in the Jail causing significant pain in his knee. Mr. Grey-Mitchell told Jail staff about the severe pain repeatedly but they ignored him. Mr. Grey-Mitchell spent months unable to move, unable to shower or use the bathroom, and unable to change clothes. His hygiene deteriorated so badly that his feet began to dry out, crack, and bleed, and were covered with dead skin and orange fungal patches. Several months after he notified DOC of his injuries and pain, DOC finally took him to the hospital for x-rays. Those x-rays identified abnormalities in his knee and a potential tear in his patellar tendon that required surgery and physical therapy. DOC failed to schedule the surgery or physical therapy, simply giving Mr. Grey-Mitchell a single ice pack.

Due to DOC’s failure to treat Mr. Grey-Mitchell’s injury for so long, the Court ordered him released pretrial in January 2022. As the Court explained: “it is really unconscionable that it got to that point, it really is. I could order the Department of Corrections to do a lot of things. But in a very practical sense, the absence of a response to an injury from September until now and the additional concern, everyone, about the reliability of the entries in his medical records, it’s just stunning.”[5]

In a different case, a Superior Court Judge expressed serious concern about DOC’s failure to provide Joseph Warren Cephas a prosthetic leg because of its cost. The Court found there was “no dispute” that the prosthetic was needed and implored the Jail to “redouble its efforts to obtain a prosthesis.” At a hearing over a week later, DOC had still failed to provide Mr. Cephas with a prosthesis. The Court explained: “This is an important medical need. If it’s not going to be addressed in the jail in a reasonably timely way, it may be that the balance will tip in favor of putting him in home confinement.”[6]

In October 2021, the federal district court for the District of Columbia held DOC in contempt after the Jail inexplicably failed, for months, to provide Christopher Worrell with necessary surgery for a broken wrist.[7] The Court was “dumbfounded” at the lack of explanation for this failure: “Does no one care? Does no one follow up? Does no one do anything? It just goes into Never Never Land, like this one.”[8] The Court went on to find “the rights of this Defendant were violated by the D.C. Department of Correction,” and the matter should be referred to the Attorney General of the United States.[9] Less than a month later, the court released Mr. Worrell because he required chemotherapy and the court had “zero confidence that the D.C. Jail will provide the treatment required by the defendant’s condition and that the D.C. Jail staff will not retaliate against Worrell as they recently have against other prisoners and detainees.”[10]

As we have learned firsthand through our own litigation against the D.C. Jail, the Jail did not and will not make improvements unless there are court-appointed monitors and inspectors making changes on the ground. In 2020, court-appointed inspectors found detainees who were isolated with coronavirus infections were denied showers, spent days in soiled clothes, and could not contact family members for up to weeks at a time. A federal judge later granted a motion requiring jail officials to address these issues.[11]

However, these injunctions ended after being in place for almost a year, meaning that court oversight was not in place when there was an outbreak of the Omicron COVID variant in 2021. Conditions continued to deteriorate without additional oversight. It is past time for the Council to act and hold DOC and CIC accountable for these well documented failures and unconscionable conditions.

2. The Council should ensure proper implementation and funding of the Corrections Oversight Improvement Omnibus Amendment Act for CIC to provide meaningful, independent oversight of DOC. 

As DOC conditions continued to deteriorate over the past year, questions regarding the effectiveness of the CIC resurfaced as CIC was not regularly inspecting DOC facilities and highlighting the issues raised by the U.S. Marshals Service. The CIC has the authority to inspect these areas, yet does not do so on a regular basis. Under its current mandate, CIC does not conduct inspections of facilities often enough, does not have unfettered access to facilities, does not issue reports in a timely manner, and does not conduct the necessary follow-up once it has identified critical deficiencies.

Last December, the CIC reported that, in all of 2022, they inspected the Correctional Treatment Facility (CTF) and the Central Detention Facility (CDF) only once: in March.[12] Prior to the March 2022 visits, the CIC’s Executive Director stated that the last time CIC had inspected the CTF was March 2021 and CIC had not inspected the CDF or the Central Cell Block (CCB) since May 2021.[13] During last year’s performance oversight hearing in March 2022, the CIC’s Executive Director stated that the CIC had not inspected the CTF in a year and had not inspected the D.C. Jail since May 2021. This is one of the many reasons why ACLU-D.C. and other partner organizations have pushed in the past for a new permanent, independent oversight body to meaningfully hold DOC accountable.[14]

Last Council period, the Council took steps towards independent oversight and passed Bill 24-0076, the Corrections Oversight Improvement Omnibus Amendment Act of 2022, which, at the time of this hearing, is still under congressional review. Should the law go into effect, it would require CIC to make quarterly unannounced visits to each DOC facility, including CCB; require DOC to notify CIC of any death within 24 hours; and require CIC to produce eight reports a year on conditions of confinement, implementation of CIC recommendations, food services in DOC facilities, use of force by DOC personnel, use of safe cells and segregation in DOC facilities, career readiness and educational programming in DOC facilities, and prevalence of contraband in DOC facilities and strategies for reduction.

The Council and the Mayor should fully fund the Corrections Oversight Improvement Omnibus Amendment Act of 2022 during the upcoming budget process for the full amount requested in the November 30, 2022 fiscal impact statement.[15] Further, once the law goes into effect, the Council should follow up with CIC to ensure their full participation in line with the law’s requirements, including unannounced visits, reporting on resident deaths, and regular reporting on the areas above. With proper implementation and full funding once the law goes into effect, the CIC has an opportunity to provide meaningful oversight of DOC.

3. The Council should ensure that deaths in DOC custody are disclosed to the Council and the public in a timely manner. 

One area that needs urgent reform is the timely review and accurate reporting of deaths of people at DOC’s facilities. DOC has not required the public disclosure of deaths at its facilities and the Council has no established system for learning about deaths in DOC custody. As of September 2022, seven people had died at DC Jail in 2022 – raising serious concerns about the facility's conditions and supervision of residents. Adding to these concerns is a disturbing lack of transparency: of these seven deaths, four had not been publicly disclosed.[16]

Last year, DOC failed to notify the office of the previous Judiciary Committee Chair Charles Allen about several of the in-custody deaths.[17] Information continues to be shared days, even weeks after a death has occurred. This lack of transparency is inexcusable. The Council should pass legislation formalizing a policy for prompt, consistent, and transparent communication about deaths at the Jail with both the Council and the public.

Being accused of a crime should not be a death sentence. Yet, despite countless calls for systemic reform, DOC has shown little evidence that they are working to prevent people from dying while in their custody. To prevent future deaths in our criminal legal system, DOC and CIC must commit to safety measures that value residents' lives. Without transparency and public disclosure of deaths that occur at DOC facilities, the District will continue to have more tragic examples of why these agencies need an immediate overhaul and external accountability mechanisms.

4. The Council should pass legislation banning the use of solitary confinement at the Jail. 

Prior to the pandemic, DOC used solitary confinement three times the national average, a figure confirmed by DOC Director Thomas Faust at his last oversight hearing before the Council in March 2022. Similarly, DOC’s use of “safe cells” has inflicted significant trauma and violated the rights of those experiencing mental health crises, placing them in filthy cells with lights kept on 24 hours a day and without access to basic needs like necessary medications and running water.

Last Council period, the Council considered Bill 24-0946, the Eliminating Restrictive and Segregated Enclosures (“ERASE”) Solitary Confinement Act of 2022, which would prohibit nearly all forms of segregated confinement for individuals incarcerated at penal institutions owned, operated, and controlled by DOC and the Department of Youth Rehabilitation Services (DYRS). It would also limit the use of safe cells and would have required DOC and DYRS to create a plan to eliminate segregated confinement and to report to the Council the effects of the legislation.

As we testified to last October, the practice of solitary confinement jeopardizes public safety, wastes taxpayer dollars, and is inhumane and traumatic to the individuals who endure it. Ending solitary confinement demands confronting inequities in the criminal justice system and the racial bias driving them. While we supported last year’s bill, we have several recommendations to strengthen the legislation before it is re-introduced, which can be found in our previous testimony.[18] As a member of the Unlock the Box D.C. coalition, we urge the Council to re-introduce the ERASE Solitary bill this Council period with our legislative changes included and are here to be a resource to the Council moving forward.

5. Conclusion
    

To say that DOC’s management of the jail has been abysmal is an understatement. CIC has not worked to hold DOC accountable, and a swift change is necessary.

In its oversight and legislative role, the Council has the power and responsibility to step in and the urgency to do so now is higher than ever. There has never been so much corroborated and glaring evidence that DOC is in serious need of overhaul and external accountability mechanisms.

The ACLU-D.C. is ready to work with you and alongside community partners to address this emergency and fight for the right of everyone held at the jail to be treated humanely.